Ubiquitous
2020-11-28 21:37:12 UTC
A Pennsylvania state court Judge has issued a preliminary injunction
preventing Pennsylvania from taking any further steps to perfect its
certification of the election, including but not limited to appointment
of electors and transmission of necessary paperwork to the Electoral
College, pending further court hearings and rulings. The ruling upholds
an injunction from earlier in the week, and is significant because of
the findings made in the Opinion released tonight.
You can read the Opinion here.
The case has been somewhat under the radar, because it doesnt involve
claims of fraud. It appears to be a pretty straight legal argument.
This is not the federal court case that has received a lot of press
attention and in which the Third Circuit Court of Appeals denied
relief.
The issue in this case is whether legislative expansion of absentee
balloting to broad mail-in balloting violated the Pennsylvania
Constitution. Its not clear what the relief would be; the petitioners
seek to preclude the Secretary of State from transmitting the
certification or otherwise perfecting the electoral college selections.
Earlier in the week, Judge Patricia McCollough issued a temporary halt
to the certification process, and that now is on appeal to the PA
Supreme Court. The Judge issued this Opinion to extend that halt
pending futher hearings, and to set forth the basis for the injunction,
which could be relevant to the appeal:
As this Courts November 25, 2020, Order of an Emergency
Preliminary Injunction has been appealed to the Pennsylvania
Supreme Court, this opinion shall set forth the basis for
said Order and shall also satisfy the requirements of Rule
1925 of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925 .
Here is the Judges description of the claim:
In the Petition, Petitioners allege that the Act of October 31,
2019, P.L. 552, No. 77 (Act 77), which added and amended
various absentee and mail-in voting provisions in the
Pennsylvania Election Code (Election Code),1 is
unconstitutional and void ab initio because it purportedly
contravenes the requirements of the Pennsylvania Constitution.
Petitioners allege that Article VII, section 14 of the
Pennsylvania Constitution provides two exclusive mechanisms by
which a qualified elector may cast his or her vote in an
election: (1) by submitting his or her vote in propria persona
at the polling place on election day; and (2) by submitting an
absentee ballot, but only if the qualified voter satisfies the
conditions precedent to meet the requirements of one of the
four, limited exclusive circumstances under which absentee
voting is authorized under the Pennsylvania constitution.
(Petition, ¶16.) Petitioners allege that mail-in voting in the
form implemented through Act 77 is an attempt by the
legislature to fundamentally overhaul the Pennsylvania voting
system and permit universal, no-excuse, mail-in voting absent
any constitutional authority. Id., ¶17. Petitioners argue that
in order to amend the Constitution, mandatory procedural
requirements must be strictly followed. Specifically, pursuant
to Article XI, Section 1, a proposed constitutional amendment
must be approved by a majority vote of the members of both the
Pennsylvania House of Representatives and Senate in two
consecutive legislative sessions, then the proposed amendment
must be published for three months ahead of the next general
election in two newspapers in each county, and finally it must
be submitted to the qualified electors as a ballot question in
the next general election and approved by a majority of those
voting on the amendment. According to Petitioners, the
legislature did not follow the necessary procedures for
amending the Constitution before enacting Act 77 which created
a new category of mail-in voting; therefore, the mail-in ballot
scheme under Act 77 is unconstitutional on its face and must be
struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek,
inter alia, a declaration and/or injunction that prohibits
Respondents from certifying the November 2020 General Election
results, which include mail-in ballots that are permitted on a
statewide basis and are allegedlyimproper because Act 77 is
unconstitutional.
The Judge found, among other things, that the plaintiffs were likely to
prevail on their PA constitutional claims, and that the matter was not
moot even though PA had certified the results, because there were
more steps to be taken [emphasis added]:
Accordingly, in careful consideration [on November 25] of the
exigencies and time constraints in this matter of statewide
and national import, and the longstanding constitutional
mandate that every citizen of this Commonwealth is entitled to
no less than a fair and free election, it was necessary [on
November 25] to preliminarily enjoin, on an emergency and
temporary basis, Executive Respondents from undertaking any
other actions with respect to the certification of the results
of the presidential and vice presidential elections, if indeed
anything else needs to be done, pending an evidentiary hearing
to ascertain the facts of this matter and to determine if the
dispute is moot .
Based upon the record before it, this Court has sufficient
grounds to enjoin Respondents from further certification
activities on an emergency preliminary basis, pending the
results of the evidentiary hearing it had scheduled for this
date, after which the Court would have determined if a
preliminary injunction should issue.4 Since the Court is
sitting in equity it has the power to fashion such relief as it
is vitally important that the status quo be preserved pending
further judicial scrutiny .
Additionally, Petitioners appear to have established a
likelihood to succeed on the merits because Petitioners have
asserted the Constitution does not provide a mechanism for the
legislature to allow for expansion of absentee voting without
a constitutional amendment. Petitioners appear to have a viable
claim that the mail-in ballot procedures set forth in Act 77
contravene Pa. Const. Article VII Section 14 as the plain
language of that constitutional provision is at odds with the
mail-in provisions of Act 77. Since this presents an issue of
law which has already been thoroughly briefed by the parties,
this Court can state that Petitioners have a likelihood of
success on the merits of its Pennsylvania Constitutional claim.
The Judge expressed grave concern as to what a remedy would be if she
were to rule the mail-in balloting unconstitutional, so even if she
ruled for the petitioners on the merits, its not clear if that would
change the result:
That being said, this Court is mindful that one of the
alternative reliefs noted by Petitioners would cause the
disenfranchisement of the nearly seven million Pennsylvanians
who voted in the 2020 General Election. Specifically,
Respondents claim that a temporary stay would disenfranchise
voters as the legislature would appoint the electors to the
Election College. However, as noted, the legislature is not
authorized to appoint the electors to the Electoral College
until December 8, the Federal Safe Harbor date for certifying
results for presidential electors. The Court agrees it would
be untenable for the legislature to appoint the electors where
an election has already occurred, if the majority of voters
who did not vote by mail entered their votes in accord with a
constitutionally recognized method, as such action would result
in the disenfranchisement of every voter in the Commonwealth
who voted in this election not only those whose ballots are
being challenged due to the constitutionality of Act 77.
However, this is not the only equitable remedy available in a
matter which hinges upon upholding a most basic constitutional
right of the people to a fair and free election. Hence,
Respondents have not established that greater harm will result
in providing emergency relief, than the harm suffered by the
public due to the results of a purportedly unconstitutional
election.5
The Judge concluded:
For all of the above reasons, the Court respectfully submits
that the emergency preliminary injunction was properly issued
and should be upheld pending an expedited emergency evidentiary
hearing
This is not a final ruling on the merits. Its meant to prevent PA from
taking more steps until the court finally rules.
Given how the PA Supreme Court has ruled previously on election
matters, expanding procedures beyond what even the legislature adopted,
I dont see how this survives the PA Supreme Court. From there, the
next stop is the U.S. Supreme Court where we know John Roberts and the
three liberal Justice will defer to the state supreme court. But the
Court is now 6-3, so a Roberts defection would not result in a 4-4
deadlock again if the 5 conservative Justices voted together.
--
"We have put together, I think, the most extensive and and inclusive
voter fraud organization in the history of American politics."
- Joe Biden
#StopTheSteal
preventing Pennsylvania from taking any further steps to perfect its
certification of the election, including but not limited to appointment
of electors and transmission of necessary paperwork to the Electoral
College, pending further court hearings and rulings. The ruling upholds
an injunction from earlier in the week, and is significant because of
the findings made in the Opinion released tonight.
You can read the Opinion here.
The case has been somewhat under the radar, because it doesnt involve
claims of fraud. It appears to be a pretty straight legal argument.
This is not the federal court case that has received a lot of press
attention and in which the Third Circuit Court of Appeals denied
relief.
The issue in this case is whether legislative expansion of absentee
balloting to broad mail-in balloting violated the Pennsylvania
Constitution. Its not clear what the relief would be; the petitioners
seek to preclude the Secretary of State from transmitting the
certification or otherwise perfecting the electoral college selections.
Earlier in the week, Judge Patricia McCollough issued a temporary halt
to the certification process, and that now is on appeal to the PA
Supreme Court. The Judge issued this Opinion to extend that halt
pending futher hearings, and to set forth the basis for the injunction,
which could be relevant to the appeal:
As this Courts November 25, 2020, Order of an Emergency
Preliminary Injunction has been appealed to the Pennsylvania
Supreme Court, this opinion shall set forth the basis for
said Order and shall also satisfy the requirements of Rule
1925 of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925 .
Here is the Judges description of the claim:
In the Petition, Petitioners allege that the Act of October 31,
2019, P.L. 552, No. 77 (Act 77), which added and amended
various absentee and mail-in voting provisions in the
Pennsylvania Election Code (Election Code),1 is
unconstitutional and void ab initio because it purportedly
contravenes the requirements of the Pennsylvania Constitution.
Petitioners allege that Article VII, section 14 of the
Pennsylvania Constitution provides two exclusive mechanisms by
which a qualified elector may cast his or her vote in an
election: (1) by submitting his or her vote in propria persona
at the polling place on election day; and (2) by submitting an
absentee ballot, but only if the qualified voter satisfies the
conditions precedent to meet the requirements of one of the
four, limited exclusive circumstances under which absentee
voting is authorized under the Pennsylvania constitution.
(Petition, ¶16.) Petitioners allege that mail-in voting in the
form implemented through Act 77 is an attempt by the
legislature to fundamentally overhaul the Pennsylvania voting
system and permit universal, no-excuse, mail-in voting absent
any constitutional authority. Id., ¶17. Petitioners argue that
in order to amend the Constitution, mandatory procedural
requirements must be strictly followed. Specifically, pursuant
to Article XI, Section 1, a proposed constitutional amendment
must be approved by a majority vote of the members of both the
Pennsylvania House of Representatives and Senate in two
consecutive legislative sessions, then the proposed amendment
must be published for three months ahead of the next general
election in two newspapers in each county, and finally it must
be submitted to the qualified electors as a ballot question in
the next general election and approved by a majority of those
voting on the amendment. According to Petitioners, the
legislature did not follow the necessary procedures for
amending the Constitution before enacting Act 77 which created
a new category of mail-in voting; therefore, the mail-in ballot
scheme under Act 77 is unconstitutional on its face and must be
struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek,
inter alia, a declaration and/or injunction that prohibits
Respondents from certifying the November 2020 General Election
results, which include mail-in ballots that are permitted on a
statewide basis and are allegedlyimproper because Act 77 is
unconstitutional.
The Judge found, among other things, that the plaintiffs were likely to
prevail on their PA constitutional claims, and that the matter was not
moot even though PA had certified the results, because there were
more steps to be taken [emphasis added]:
Accordingly, in careful consideration [on November 25] of the
exigencies and time constraints in this matter of statewide
and national import, and the longstanding constitutional
mandate that every citizen of this Commonwealth is entitled to
no less than a fair and free election, it was necessary [on
November 25] to preliminarily enjoin, on an emergency and
temporary basis, Executive Respondents from undertaking any
other actions with respect to the certification of the results
of the presidential and vice presidential elections, if indeed
anything else needs to be done, pending an evidentiary hearing
to ascertain the facts of this matter and to determine if the
dispute is moot .
Based upon the record before it, this Court has sufficient
grounds to enjoin Respondents from further certification
activities on an emergency preliminary basis, pending the
results of the evidentiary hearing it had scheduled for this
date, after which the Court would have determined if a
preliminary injunction should issue.4 Since the Court is
sitting in equity it has the power to fashion such relief as it
is vitally important that the status quo be preserved pending
further judicial scrutiny .
Additionally, Petitioners appear to have established a
likelihood to succeed on the merits because Petitioners have
asserted the Constitution does not provide a mechanism for the
legislature to allow for expansion of absentee voting without
a constitutional amendment. Petitioners appear to have a viable
claim that the mail-in ballot procedures set forth in Act 77
contravene Pa. Const. Article VII Section 14 as the plain
language of that constitutional provision is at odds with the
mail-in provisions of Act 77. Since this presents an issue of
law which has already been thoroughly briefed by the parties,
this Court can state that Petitioners have a likelihood of
success on the merits of its Pennsylvania Constitutional claim.
The Judge expressed grave concern as to what a remedy would be if she
were to rule the mail-in balloting unconstitutional, so even if she
ruled for the petitioners on the merits, its not clear if that would
change the result:
That being said, this Court is mindful that one of the
alternative reliefs noted by Petitioners would cause the
disenfranchisement of the nearly seven million Pennsylvanians
who voted in the 2020 General Election. Specifically,
Respondents claim that a temporary stay would disenfranchise
voters as the legislature would appoint the electors to the
Election College. However, as noted, the legislature is not
authorized to appoint the electors to the Electoral College
until December 8, the Federal Safe Harbor date for certifying
results for presidential electors. The Court agrees it would
be untenable for the legislature to appoint the electors where
an election has already occurred, if the majority of voters
who did not vote by mail entered their votes in accord with a
constitutionally recognized method, as such action would result
in the disenfranchisement of every voter in the Commonwealth
who voted in this election not only those whose ballots are
being challenged due to the constitutionality of Act 77.
However, this is not the only equitable remedy available in a
matter which hinges upon upholding a most basic constitutional
right of the people to a fair and free election. Hence,
Respondents have not established that greater harm will result
in providing emergency relief, than the harm suffered by the
public due to the results of a purportedly unconstitutional
election.5
The Judge concluded:
For all of the above reasons, the Court respectfully submits
that the emergency preliminary injunction was properly issued
and should be upheld pending an expedited emergency evidentiary
hearing
This is not a final ruling on the merits. Its meant to prevent PA from
taking more steps until the court finally rules.
Given how the PA Supreme Court has ruled previously on election
matters, expanding procedures beyond what even the legislature adopted,
I dont see how this survives the PA Supreme Court. From there, the
next stop is the U.S. Supreme Court where we know John Roberts and the
three liberal Justice will defer to the state supreme court. But the
Court is now 6-3, so a Roberts defection would not result in a 4-4
deadlock again if the 5 conservative Justices voted together.
--
"We have put together, I think, the most extensive and and inclusive
voter fraud organization in the history of American politics."
- Joe Biden
#StopTheSteal